Compass Lexecon Client fuboTV Granted Preliminary Injunction Against The Walt Disney Company, Fox Corp., and Warner Brothers Discovery Inc.

Compass Lexecon’s client fuboTV Inc. (Fubo) prevailed in its motion for a preliminary injunction to block the formation of a joint venture (JV) between The Walt Disney Company, Fox Corp. and Warner Brothers Discovery Inc. (Defendants). The Defendants’ JV—which was code named “Raptor”—sought to launch a sports-focused streaming service that combined 14 linear television channels with substantial sports content. Fubo argued that the JV was unlawful under Section 7 of the Clayton Act, and that Fubo would be irreparably harmed by the launch of Raptor. Following a five-day hearing, Judge Margaret M. Garnett, granted Fubo’s motion, finding that “Fubo is likely to succeed on its claims that by entering into the JV, the JV Defendants will substantially lessen competition and restrain trade in the relevant market in violation of Section 7 of the Clayton Act.”

Compass Lexecon Senior Consultant Jonathan Orszag testified during the hearing that the launch of the JV would lessen competition, thereby harming consumers. The Court concluded in its opinion, entirely consistent with Mr. Orszag’s testimony, that the JV would “harm competition and consumers by allowing horizontal competitors to coordinate rather than compete, and to monopolize a segment of the market they created and now control as a result of their longstanding business practices; and by creating incentives for each JV Defendant to raise prices to distributors for their programming.”

Mr. Orszag was supported by a team that included Thomas Stemwedel, Daniel O’Brien, Mihir Gokhale, and Katelyn Gillen. Fubo was successfully represented by Mark Hansen, Josh Hafenbrack, Tom Schultz, Rachel Anderson and Dennis Howe of Kellogg, Hansen, Todd, Figel & Frederick PLLC.